We've file our motion for preliminary injunction to stop Illinois's "assault weapon" registration requirement on behalf of Federal Firearms Licensees of Illinois, @GSL_IL , @GunOwners, @GunFoundation, @piasaarmory, and individual plaintiffs.
You can read it here:
We make two due process arguments, the first being that Illinois has not made a serious effort to provide notice to those affected.
Even if someone is aware their rifle, pistol, or shotgun is affected, many are not aware that the law even requires registration of underlying parts. A loose pistol grip must be registered. Or @FreedomSsteel's lightsaber.
We argue that the retroactive effect makes this notice issue particularly insidious.
The other half of the due process argument is vagueness. The law is very vague in a number of ways that we go through.
The 7th Circuit ruling complicates our Second Amendment claim, but we are confident it will eventually be reversed. And being just a preliminary ruling, we don't think the District Court is bound from ruling for us on 2A grounds. But even if the judge decides he is, we present the argument in full here to preserve it for appeal.
You cannot square a constitutional amendment that exists in part to be a final check on tyrannical government, with a government registration requirement.
I'm not sure if anyone has outright argues this before in litigation, but time to stop dancing around it.
Even got to cite a forthcoming law review article by some very smart lawyers. Many people are saying they are the best in the field.
We also rebut the Herrera court's reliance on "muster" laws to uphold registration.
Registration wasn't a thing before the NFA.
Hopefully, the Court agrees and stops registration, or at least delays it until some time after the litigation on the underlying ban has concluded.
Please support all of our great plaintiffs who make this litigation possible.
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Alright, a quick reaction thread. The majority first, written by Judge Woods and joined by Judge Easterbrook.
Already off to a horrible start. What falls outside the Second Amendment's protected "arms" has nothing to do with a "military side". Plenty of firearms the military uses now or has used in the past are common among American civilians.
"Arms" refers to "weapons of offence, or armor of defence". There is no qualifications about exempting those arms used by soldiers.
The contempt for Heller and its progeny is palpable.
Remember that their "many years" is just from around the 1930s to 2008. In the 19th century, all major commentators agreed that the Second Amendment applied to an individual right.
Woods claims that Friedman survives Bruen. Incredible.
This was one of the point we raised in our arguments when California kept trying to set 10 as some magical line. Different states set different limits, for what is a fundamental right applicable to all states.
Benitez notes that California would almost assuredly reduce the ten round limit anyway. It is arbitrary.
I hate for Jake to think I'm picking on him by taking on another one of his articles, but hopefully he sees it as bringing traffic to his work haha. Anyway, I find his article below unpersuasive for several reasons.
Big picture, I think it's funny how we argued for years that the origins of gun control are rooted in racism, and the antigun side denied that fervently. Yet now, they talk about how it is necessary to cite racist historical gun control laws to uphold modern gun control.
But as to some specific arguments made in the article:
"In some cases, officials face a dilemma of Bruen’s own making: rely on relevant but undeniably heinous laws or allow gun regulations supported by empirical evidence to be felled."
No, it's a dilemma of the officials' own making for defending laws that infringe on a fundamental right. The fact that oftentimes the only historical analogues that they can find didn't affect what they saw as law-abiding citizens but rather only people they saw as lesser than them for racist reasons dooms their argument. You can't use such laws to disarm a citizen today, because a citizen today is analogous to the white male citizens of 1791 - and not those who were wrongly excluded.
Nobody would argue speech restrictions on regular citizens today are appropriate because of old laws curtailing the free speech rights of slaves. At least I hope nobody would.
"But the question will often arise when the government must defend current laws that restrict gun possession for dangerous individuals—like domestic abusers, violent felons, or intoxicated gun owners—where history supplies no precise replicas and the constitutional question thus turns on analogies."
But this is just not true. Governments back then DID have laws barring people from carrying while drunk, and people who committed violent crimes were imprisoned and often hanged, with far more brutal efficiency than our kinder, gentler treatment of criminals today. And while domestic abuse was not seen as a crime back then, that's where analogical reasoning does come into play. If you are convicted of domestic violence today, that's analogous to those who were disarmed for violent crimes of the past. (The beef with Rahimi is that it's pre-conviction).
Bruen does close off a lot of gun control, as it should because it's pertaining to a right that "shall not be infringed". But "who" questions, at least post-conviction violent criminals, are still left pretty wide open.
"One option is to renounce reliance on discriminatory laws altogether. Legal actors might do so on the grounds that these laws are egregiously immoral and would now violate the Equal Protection Clause. They could add that for a government or court today to rely on such laws would cause further harm, stigma, and alienation to marginalized groups. Call this the Renunciation Approach."
This is the proper approach, that they won't actually take. But it's the one Bruen embraced, so they should. In that ruling, the Supreme Court did not even consider the plethora of racist carry laws that existed that prevented black people, natives, etc. from carrying arms. They aren't valid analogues.
"Consider what the Abstraction Approach looks like in practice. In a dissenting opinion pre-dating Bruen, but consistent with its method, then-Judge Amy Coney Barrett argued that history shows the Second Amendment permits disarming dangerous people."
I think Jake (and by proxy, Justice Barrett) make a solid argument here on talking about what the exercise of power says about the scope of the right, even if that exercise of power in the historical examples was racist. But at most, this only justifies barring people deemed "dangerous". The government never stops there though, it uses such racist historical laws to justify taking gun rights away from plainly not dangerous people, like those whose only crime is using marijuana, or someone like Mr. Range who last committed a (nonviolent) crime three decades ago.
Even setting aside the racism of the historical laws cited, the fact that the founders excluded entire groups from "the people" based on race (and not because anyone had done anything wrong ) is not the same thing as excluding people based on their individual actions, like prohibiting someone from having guns because they smoked weed. Bruen says "how" the analogue functioned is part of the determination in whether it is relevantly similar. This is a totally different "how". At most, these analogues could arguably justify a ban on say, illegal immigrants having guns.
"The decision even circumscribes the historical inquiry itself, requiring the government to produce past positive law to support modern regulations. If all discriminatory laws are off-limits, the universe grows smaller still, given the entrenched racism saturating American history."
It's funny reading this when the federal and state governments keep arguing in their briefs how history provides a wide range of historical analogues and so gun control should always be upheld. The fact is, people seen as peaceable citizens in 1791 had a very expansive right to keep and bear arms, and the same should apply to all peaceable citizens today.
"That move is all the more troubling when one considers that the very communities of color who experience the most concentrated impact of gun violence are often the most supportive of modern gun regulations."
Oh I absolutely hate this. Those communities mostly live in failing cities run by the party that supports gun control. Their failures are no justification to strip away gun rights from law abiding citizens, including the good people that have to live in those dangerous cities and need the right to bear arms arguably more than most people do.
As I've discussed before, Boise and Richmond are roughly the same size in terms of population. Yet Boise has the homicide rate of a western-European nation, while Richmond has one of a third-world country. The solution isn't to sink to the lowest common denominator and curtail rights, it's to fix the Richmonds of the country.
"Indeed, many conservatives who seem quite unconcerned about discriminatory impact in other areas of law invoke racial justice themes when it comes to gun rights."
Goes both ways on that, Jake. The left pretends to care about minorities, until one of them wants to buy a gun or expresses a conservative opinion.
"Still, if public officials take the Abstraction Approach, they should emphasize that these abhorrent laws are not entitled to respect today. They should include clear and unmistakable normative disavowal when citing these laws—not simply neutral abstraction of a broader principle, but abstraction paired with condemnation for past applications."
We see this already, so you're good there Jake. California does this all the time in its briefing. I call them the "I'm not racist, but" footnotes.
In all, like a lot of these sorts of articles, Jake starts from the presumption that most gun control laws should be upheld and works backwards from there. But that just can't square with a right to keep and bear arms that "shall not be infringed". True, no right is unlimited, and as I discussed, there is plenty of history restricting violent criminals from having guns. But the further you get from that baseline, the less history there is to back you.
Not sure why the article isn't popping up, but here it is
California submitted some declarations in Rhode last night, including more history declarations from Spitzer, Vorenberg, and a new historian commenting on restrictions pertaining to native Americans. I've only skimmed these, but they seem to be more of the same dissimilar "analogues" the state already presented in their spreadsheets. Regardless, Benitez has already basically told the State that he has no objection to background checks as a vague concept and as envisioned by Prop 63 when it passed, but he thinks the issue here is that this background check denies way too many law-abiding people.
And the State's new declarations confirm this is still true. The overwhelming majority of people denied ammunition through the $1 AFS check are denied due to record errors, and not because they are prohibited people:
"From January 1, 2023, through June 30, 2023, the Department processed 538,359 AFS Checks, which is roughly 99.2% of all ammunition eligibility checks during this time. It approved 480,131 (89%), rejected 58,087 (11%) because the information submitted by the purchaser did not match an AFS entry, and denied 141 (0.03%) because the Department’s information showed the purchaser to be on the Armed Prohibited Persons System (APPS) list...
...These three reasons for rejections—address mismatches, no apparent AFS entry, and name mismatches—accounted for about 85% of all rejections. The remaining 15% or so of rejections occurred for various other reasons listed in Table 1.2."
More interestingly, Benitez had also ordered the State to confirm how many people denied ammunition because they were actual prohibited people were subsequently investigated by the state. The state replies that from July 2019 through December 2020 (not clear why they limited it to that time window), they did 51 investigations resulting from ammo background check denial leads that resulted in seizures, which led to 15 arrests, which led to six total convictions (4 felony, two misdemeanor).
It's hard to tell for sure from their limited time window, but it appears the vast majority of people denied for being prohibited persons are not getting investigated. This law is doing a lot more to harass law-abiding gun owners than it is capturing prohibited people trying to buy ammo.
In sum, even if you think a few incorrect denials are acceptable for the greater good of stopping prohibited people:
1. California's AFS check stopped 58,087 law-abiding people from buying ammunition, but just 141 prohibited people. That is not even close to an acceptable ratio, not even on the same planet or in the same galaxy.
2. California is not investigating the majority of prohibited people who tried to buy ammo.